Arlean Beckford v Disciplinary Committee of General Legal Council

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 19 August 2014
• Neutral Citation: JM 2014 CA 83
• Docket Number: MISCELLANEOUS APPEAL NO 1/2014 APPLICATION NO 77/2014
• Court: Court of Appeal (Jamaica)
• Date: 19 August 2014

[2014] JMCA App 27

JAMAICA

IN THE COURT OF APPEAL

MISCELLANEOUS APPEAL NO 1/2014

APPLICATION NO 77/2014

Between

Arlean Beckford

Applicant

and

Disciplinary Committee of the General Legal Council

Respondent

Paul Beswick , Miss Carissa Bryan , Miss Keiva Marshall and Kayode Smith instructed by Juliet Bailey and Company for the applicant

Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for the respondent

CIVIL PROCEDURE - Stay of execution - Whether there ought to be a stay of decision of the General Legal Council to suspend the applicant from practice for two (2) years

IN CHAMBERS

Phillips JA

1 This is an application in which Miss Beckford seeks a stay of execution of the judgment of the Disciplinary Committee of the General Legal Council (the Committee) delivered on 1 May 2014, in respect of complaint no 52/2013, in the matter of Winston Rowe v Arlean Beckford, pending the hearing of the appeal filed by her (paragraph 1 of the application).

2 The decision of the Committee was that:

‘1. The Attorney Arlean Beckford is suspended [from] practice for a period of two (2) years from the date of this judgment.

2. The Attorney Arlean Beckford is to pay costs of these proceedings in the sum of $125,000.00 of which $50,000.00 is to be paid to the complainant and $75,000.00 is to be paid to the General Legal Council.’

The proceedings below

3 The complaint in this matter was filed on 31 January 2013 by Mr Winston Rowe. It concerned a sale of land transaction wherein Mr Rowe complained that the applicant had collected the deposit and closing costs of approximately $2,000,000.00, but the transaction had not been completed. The grounds of his complaint were that he had not received information in relation to the progress of his business when he had reasonably requested the same; and that the applicant had acted with inexcusable negligence in the performance of her duties, and in so doing, had failed to maintain the honour and dignity of the profession. The notice of hearing was posted on 20 June 2013 for the hearing date of 13 July 2013. On that day the applicant attended and, according to the notes of proceedings of that day, indicated to the panel that she had received a copy of the complaint when it had been filed previously, but had not responded to it, and at that moment could not recall what her position was in relation to it. She indicated that, although she was prepared to read a copy of the complaint given to her then by the panel, she had only received the notice of hearing the day before, and she asked the panel not to proceed with the hearing of the complaint as she had received notice of the hearing late.

4 The panel was of the view that the applicant, who had received the complaint before the receipt of the notice of hearing, ought to have responded to the Committee in respect of the complaint, but had failed to do so. Additionally, the complainant who was present indicated that he was migrating and his daughter ‘was kicked out of school because of no execution of sale’. The panel therefore, although the applicant stated that she was not in a position to proceed on that occasion, refused her application for an adjournment and commenced hearing the evidence of the complainant. By the end of that day's hearing, eight exhibits had been tendered. These related to: correspondence from the applicant to the complainant giving details of the transaction and sending documents for his signature; the applicant writing to the registrar of the Caribbean Maritime Institute where the complainant's daughter was attending, indicating that funds would soon be available from the sale transaction; the applicant submitting a preliminary statement of account showing a balance due to the complainant of $5,232,750.00; the receipt by the applicant of the certificate of title for the premises; the receipt by the complainant when the title was returned to him; the application setting out the allegations against the applicant; and a notice requiring completion of the sale, made on behalf of MacKoy Dannavan Mckenzie, signed by his attorneys-at-law.

5 The hearing was adjourned for continuation, with the Committee noting that the applicant had the right to cross-examine the complainant. On 14 September 2013, the matter was adjourned as the full panel hearing the matter was not present. However, the applicant and the complainant were present. The continuation of the hearing was re-scheduled for 2 November 2013.

6 On 2 November 2013 both the complainant and the applicant were again in attendance. On that date the applicant made two preliminary objections that:

1

The panel was not properly constituted as Mrs Debra McDonald was currently sitting on another panel that was hearing allegations against the applicant similar to the matter that was before the panel and would therefore be presumed to be biased. 2. The matter should be stayed until criminal proceedings in the Resident Magistrate's Court against the applicant were through as the findings of the Committee would greatly prejudice the applicant.

7 It was the applicant's position that Mrs McDonald and two other members of the Committee had commenced a hearing in another related complaint, and had received evidence from the complainant in the instant matter in respect of the said transaction, namely the purchase of property being a lot of land with a two bedroom house constructed thereon, at 122 Gordon Boulevard, Ensom City, in the parish of Saint Catherine, and from the complainant and Tesha Norman, the other party in another matter with similar facts. It was submitted that Mrs McDonald would have known of that situation, yet she had not informed the panel hearing the complaint relating to the instant case of, nor had she disqualified herself. This, the applicant said, tainted Mrs McDonald and the panel hearing the matter, and she would not participate in the hearing before the panel thus constituted. The Committee rejected both preliminary objections and the applicant refused to continue to participate in the proceedings. The Committee adjourned for the delivery of the judgment which was given on 1 May 2014, when the orders set out in paragraph [2] were made.

8 In paragraph 22 of the decision of the Committee, pursuant to section 15(1) of the Legal Profession Act, the Committee set out its findings which are summarised below:

1

The complainant as vendor had retained the applicant to act on his behalf in a land transaction. The applicant accepted the retainer to act in the matter. The applicant represented that she had prepared the agreement for sale but the complainant had not received a copy of the same. A notice requiring completion of the sale was served on the complainant, which made reference to an agreement for sale between the parties and stated that the purchaser was ready and willing to execute the transfer and pay the balance of the purchase price in accordance with the terms of the agreement. 2. Although the agreement for sale was not produced, it was reasonable to conclude and the Committee so concluded that an agreement for sale had been executed by the parties and a deposit paid to the applicant. 3. The applicant had failed or neglected to forward to the National Housing Trust, the purchaser's lender, the stamped documents and the title in order for the sale to be completed. 4. The failure to take steps to complete the transaction resulted in the complainant being unable to assist his daughter in completing her course of study at the Caribbean Maritime Institute, and he also lost the opportunity to purchase another property in May Pen in the parish of Clarendon. He had obviously suffered loss and inconvenience due to the applicant's actions. 5. On 25 January 2013 the applicant returned the complainant's duplicate certificate of title in respect of the land that was the subject of the transaction, without any explanation as to what had become of the same. 6. The complainant made several requests for information as to the status of the transaction, but he was not provided with any information. The applicant also failed or neglected to advise the complainant as to the payment of the deposit and what had happened to it. She also failed or neglected to account for any sums paid to her.

9 The Committee therefore found that as there was no information that there were any specific conditions of sale that would have prolonged the completion of the sale, the sale which would have commenced about February 2012, ought to have been completed in July 2012. However, that had not been done, and consequently, the notice to complete had been issued in November 2012, yet still the sale had not been completed, and the certificate of title for the property had been returned to the complainant in January 2013, without explanation. On these facts the Committee felt that the applicant's conduct constituted neglect of a deplorable nature and found the applicant guilty of professional misconduct in breach of canon 1(b), canon IV (r), canon IV (s), and canon VII (b) (ii) of the Legal Profession (Canons of Professional Ethics Rules) 1978.

10 Having made those findings the Committee made the following statement under the heading ‘SANCTION’ at paragraph 26 of the decision:

‘With regard to the findings and the misconduct on the part of the attorney, the panel is of the view that it is unacceptable and inexcusable for an attorney charged with the conduct of a matter on behalf of a client to fail or refuse to provide information or documentation relevant in the matter to the client. The fundamental nature of the relationship between an attorney and his/her client is that of Principal and Agent. In the circumstances, the Principal is entitled to have full knowledge of the details of the transaction at all times. Further, the Attorney should at all times protect and advance the...